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Judgment
This application has been filed by one of theoriginal accused of Criminal Case no. 613 of 2000pending on the file of learned Chief Judicial Magistrate,Amreli, wherein, he and other accused have been tried for the offences made punishable under Sections 7 and 16 ofthe Prevention of Food Adulteration Act, (hereinafterreferred to as "the Act).
Akshay H. Mehta
1.1. The record of the application shows that theapplicant is an Editor of the well known newspaperpublished in English language namely "The Times ofIndia". Aforesaid complaint has been filed against theeditor and other original accused under the provisions ofthe Act for the violation of Rule 37-D of the Preventionof Food Adulteration Rules, ("Rules" for short). Theallegation against it, is that the advertisement that hadappeared in the said newspaper dated 20th March, 2000,was against the provisions of Rule 37-D. Theadvertisement was as follows:-
"Families across the globe trust corn oil because they care for their health.
Goldcorn Dewaxed Refined Corn Oil.
Modern life is plagued with dreadful diseases and stress. The problem of high cholesterol and cardiac failure are common place. A little care about eating habits can do wonders to your health. Especially in choosing the cooking medium.
Corn Oil is preferred the world over for its healthy properties. It has high content of Poly Unsaturated Fatty Acids, no cholesterol and also helps prevent cholesterol formation.
All the health benefits of corn oil now come to you in GOLDCORN. Manufactured in State of the art plant by your trusted manufacturer of Tirupati Cotton Seed Oil, N.K. Proteins Ltd."
1.2. In the opinion of the complainant i.e. the FoodInspector attached to the Foods and Drugs ControlDepartment at Amreli Circle, Amreli, such advertisementwas objectionable and against the provisions of the Actand Rules in particular Rule 37-D of the Rules. He,therefore, thought it fit to lodge a complaint againstthe Directors of the manufacturing company and the Editorof "The Times of India" for having committed offence asstated above, after obtaining necessary consent underSection 20(1) of the Act.
The applicant submitted an application seekingdischarge before the learned Chief Judicial Magistrate,Amreli, on the ground that considering the provisions ofthe Act, and in particular, Section 7 read with Rule37-D, no offence had been committed by the applicant.This application came to be allowed by the learnedMagistrate by judgment and order dated 27th March, 2001and prayer for discharge from the proceedings was grantedin favour of the applicant.
2.1. Against the said order, the State of Gujaratpreferred a revision application through the concernedFood Inspector and the said Criminal Revision Applicationwas numbered as 51 of 2001. The learned Sessions Judgeallowed the Criminal Revision Application and set asidethe order passed by the learned Magistrate and directedthat the applicant be prosecuted and he be tried in thepresent case. It is this judgment and order of thelearned Sessions Judge which are being challenged in thepresent proceedings before this Court.
I have gone through the record of thisapplication and the submission of the learned advocate ofrival parties. The allegation against the applicant isthat by publishing aforesaid advertisement in the "TheTimes of India", he had contravened the provisions ofRule 37-D of the Rules and consequently he has committedoffence u/s 7 read with Section 16 of the Act.It is, therefore, necessary to refer to the said Rule.Rule 37-D reads as under :-
37-D : Labelling of edible oils and fats The package, label or the advertisement of edible oils and fats shall not use the expressions "Super - Refined". "Extra Refined", "Micro Refined", "Double Refined", "Ultra -Refined", "Anti-Cholesterol", "Cholesterol Fighter", "Soothing to Heart", "Cholesterol Friendly", "Saturated Fat Free", or such other expressions which are an exaggeration of the quality of the Product." 3.1. It is submitted by the learned advocate for theapplicant that if Section 7 is closely perused, it saysthat no person shall himself or by any person on hisbehalf manufacture for sale or store, sell or distribute(v) any article of food in contravention of any otherprovision of this Act or of any rule made thereunder. It is further submitted that the present applicant isneither manufacturer nor a person who has stored, nor heis connected with activity of sale distribution etc. Hehas merely published this advertisement for sale and,therefore, it cannot be prosecuted.
3.2. Since in the instant case, we are concerned with"advertisement", it is necessary to find out what ismeant by expression "advertisement". This expression isnot defined in the Act or the Rules, but some clue to thesaid expression can be had from the Rules themselves.Rule 43-A deals with restriction on advertisement, whichis reproduced as below :-
"43-A : Restriction on Advertisement :
There shall be no advertisement of any food which is misleading or contravening the provisions of Prevention of Food Adulteration Act, 1954 or the Rules made thereunder."
[Explanation ; The term "Advertisement" meansany visible representation orannouncement made "(by means ofany light, sound, smoke, gas,print, electronic media, internetor website)]
3.3. It appears from the Act as well as Rule, thatRule 37-D was introduced on the Statute Book in the year1999, i.e. 5th April, 1999. Rule 43-A as it stood thenis as under :-
"43-A : Restriction on Advertisement :
There shall be no advertisement of any food which is misleading or contravening the provisions of Prevention of Food Adulteration Act, 1954, or the rules made thereunder."
[Explanation ; The term "Advertisement" meansany visible representation orannouncement made by means of anylight, sound, smoke or gas].
The aforesaid Rule 43-A came to be amended witheffect from 28th August, 2002. If Rule 43-A as amendedas well as unamended are compared, in the unamended Ruleword "print" was not there and it came to be addedsubsequently by way of amendment on 28th August, 2002.This advertisement was in printed form in the newspaper"The Times of India" published by the applicant. Theoffence is alleged to have taken place in the year, 2000,meaning thereby, when the advertisement was published inthe newspaper words "print" etc., were not on the StatuteBook and the publication of such advertisement in thenewspaper could not be said to be an offence. If at thetime when the complaint came to be filed, the act ofapplicant was not an offence, by virtue of the subsequentamendment, bringing such act within the ambit of anoffence cannot make the applicant liable of committingsuch offence because of prohibition against retrospectivecriminal law imposed by Article 20(1) of Constitution ofIndia. If that be so, the present case against thecomplainant cannot be allowed to proceed further as itwill be merely an exercise in futility. The facts of the case even prima facie, do not disclose any offence and,therefore, the trial, in all probabilities will end intoacquittal of the applicant.
This Court and the Apex Court have often saidthat even considering the facts as they are, no offenceis disclosed and the trial if permitted to proceed in allprobabilities is likely to result into acquittal of theaccused. It should be terminated at the threshold. Asseen aforesaid that when the offence is alleged to havetaken place, in the instant case the provisions of the Act and the Rule were slightly different and "printing"was not included within the scope of expression"advertisement". It was at a subsequent stage, theamendment covering "printing" into fold of saidexpression was introduced, which as stated above cannothave retrospective effect. In that view of the matter,the order of discharge passed by the learned Magistratein favour of the applicant, though for different reasons,is required to be confirmed and the order of the learnedSessions Judge, passed in Criminal Revision ApplicationNo. 51 of 2001 is required to be quashed and set asideand accordingly it is ordered to be quashed and set asideand the order of discharge passed by the learnedMagistrate is restored. Since this application is filedunder Section 482 of the Criminal Procedure Code, 1973,praying for quashing of the proceedings against thepresent applicant, the said prayer is also required to begranted. The proceedings of Criminal Case No. 613 of2000 pending on the file of learned Chief JudicialMagistrate, Amreli so far as they relate to the presentapplicant, are quashed. Thus, this application isallowed. Rule is made absolute.